Notices to Fix; the Who, What, and Why.
Note;
We are not lawyers and are mindful that the following provides significant legal comment and interpretation. Legal precedents are sparse. Readers must seek qualified legal advice but we also welcome critique, challenge and rebuttal of the views expressed-Alan light]
Introduction
The enforcement mechanism under the Building Act apart from Dangerous Building Notices under s124 are “Notices to Fix” (NtF) under s164 of the building Act 2004. Previously these were issued as Notices to Rectify(NtR) under the Building Act 1991. In recent times we have noted an increasing tendency for councils to issue a Notice to Fix under s164 of the Building Act 2004 for what appears to be only technical breaches of the Building Act. Failure to comply with provisions of the building act is an offence for only a selective number of provisions. If a council can issue a NTF for only non compliance then should they issue a BCA a NTF when a BCA fails to issue a building consent on time (under s48 (1)A (b)) within 20 days? Should contraventions be reserved for those that require a remedy?
A recent determination 2013-015 discussed in other papers on this site made it clear that a NtF should only be issued for serious offences recidivist offenders and after exhausting other avenues.
4.2.8 states; “for example if the breach is significant, the building work is unsafe or is likely to
become unsafe, or there have been repeated breaches by the owner of the Act or
Building Code. However, in these circumstances, there are particular requirements
of the Act in respect of the issue of a notice to fix that must be satisfied. For
example, an authority must consider on reasonable grounds that a person is
contravening or failing to comply with the Act or regulations. The authority’s belief
that the Act or regulations are being contravened will require some specific evidence
in support of that belief before a notice to fix can be issued.”
Instead issuing a NTF is often the first time an owner becomes aware of the allegations of non contravention. The main problem seems to involve unapproved work (sometimes completed for some years),where council seem more interested in enforcement against the building itself rather than the s40 offence utilised which strictly is to the person carrying out the work.
The question of remedy in these cases also raises the issue of whether unapproved work has to be approved (by way of a certificate of acceptance(CoA) or can remain as unapproved work as long as it is not dangerous or insanitary which was the established case under the building act 1991 (which had similar provisions)but no provision for a voluntary CoA as there is now. If something is able to remain and doe not require a remedy does it not follow that an allegation of contravention is also not warranted?
Council seem to operate on the premise that if a NtF can be issued then it should be without reference to harm and outcome and the greater good to the community.
Who can issue a NTF?
Ntf are issued by responsible persons. These are defined under s163 as a) Building Consent Authority (BCA), b) territorial authority(TA) or c) regional authority.
Who can a NTF be issued to?
NTF are issued to "specified persons". These are defined in s163 as; a) the owner of a building b) if the NTF relates to building work being carried out (i) the person carrying out the building work or (ii) if applicable any other person supervising the building work.
(Note; prior to 2017 reprint there was an "and" after “owner” in a). This changes emphasis on who should get a NTF when it involves building work being carried out and suggests that the NTF should only be issued to person in 163(b) when it involves work being carried out (and not the owner?). This is consistent with the person doing/carrying out the work as being responsible and not the owner unless they are also the builder.
What can a NTF be issued for?
S164 (1) sets out the reasons a NtF can be issued for ;
164 (1) This section applies if a responsible authority considers on reasonable grounds that--
a) a specified person is contravening or failing to comply with this Act or the regulations (for example, the requirement to obtain a building consent); or
b) a building warrant of fitness or dam warrant of fitness is not correct; or
c) the inspection, maintenance, or reporting procedures stated in a compliance schedule are not being, or have not been, properly complied with.(2)
(2) A responsible authority must issue to the specified person concerned a notice (a notice to fix) requiring the person--
a) to remedy the contravention of, or to comply with, this Act or the regulations; or
b)to correct the warrant of fitness; or
c) to properly comply with the inspection, maintenance, or reporting procedures stated in the compliance schedule.
There are also under s166 special provisions for NtF from Building Consent Authority's (BCA). Building Consent Authority's are persons under s273 granted the authority to grant Building consents under s49 and administer the associated requirements for building work. It is common for Territorial Authorities (TA) to be councils and also BCA's but BCA's may contract to other TA/councils to do their work. S166 provides a BCA that issued a building consent who considers that the building work has not been or is not being carried out in accordance with the Act or the Building consent to issue a NTF but there are restrictions on jurisdiction. ( the consent is operative, is in respect to building work that required a building consent or did not require a consent but was required to meet the building code). We note that a BCA can only act where they have issued a consent.
It is an offence to not display a correct Building Warrant of Fitness under s108(5). The reporting maintenance and reporting requirements are not being complied with is something covered under s103(1) except this is not an offence under the act (to not comply with the requirements in the compliance schedule). It is only an offence to an owner to not obtain a compliance schedule under s101 (2).
Leaving aside building warrant of fitness's it is of note that s164 (c) is required to be mentioned unless it was to include something in 164(1)(a) that was not otherwise included as a "contravention" and offence?
The question is raised as to why (b) (c) was required to be stated? They are both contraventions of the act although only (b) is an offence? My view is that this must have been to ensure that the remedy that follows in s164 (2) is relevant. Remedy under s164 (1) (a) should be self- evident
s164(1) (a) otherwise provides for stopping any offence under the Act and the example provided alludes to such an instance "the requirement to obtain a building consent". (unfortunately the remedy in s164(2) (a) does not mirror s164(1) (a).What is unclear is whether s164 (1) (a) refers to s40 and the carrying out of building consent otherwise in accordance with a building consent (which is an offence under s40), or the owners obligation under s44 to apply for a consent (which does not attract an offence if he doesn't).
There is a consistency if it is recognized that having stopped work (without consent)the obligation is to obtain a consent for work still requiring one but the work done may be covered under an application for a CoA. (which can be read as either; i. may not include for a CoA if owner chooses to not do) so or ii. council may accept application for one but this may also recognize that one cannot be required.
The remedies in 164(2) mirror the contraventions in (1). In (a) it states that the specified person will remedy the contravention of, or comply with the act. (Contravention means: "A term of French law meaning an act violative of a law, a treaty, or an agreement made ..". Collins Dictionary of Law © W.J. Stewart, 2006).
The question is whether something under the act that is not an offence is a contravention or just simply a non compliance? It is true that serious contraventions are also provided with offences that follow (e.g.s40 s114, s 108, s128....), that also are generally listed in infringement regulations. The example in s164 (1) (a) alludes to s40 for example
It should also follow that a contravention is provided with a remedy required under the building act, For example working without a consent means a consent is required to be attained, failure to display a BWoF means one must be displayed. Building Work being carried out that is failing a code clause must under s17 be made compliant (but not the building it is attached to).
Building work that is complete and not being carried out is now the "Building" and cannot have compliance enforced. (we note s124 applies to all buildings all the time).
S40 offense;
S40 seems to be the council go-to clause for unconsented work. We appreciate that work in hand should be under consent (if schedule 1 does not apply and the work cannot be 'described' under it). While the wording in NTF often use obtaining a consent as the wording associated with s40 the offence under s40 is the carrying out of Building work and the offence is not to the building work per se. The wording is more correctly attributable to s44 the owners responsibility to get a consent before work is started (but there is no offence to this section?)
S 40 also attracts an infringement fine ($1000 fine and carries its own punitive threat of $200k and or $20k per day possible court fine.....
We note that s40 applies to the person carrying out the work at the time. If the work to date did not require a consent or it is completed there is no continuing offence to the existing structures even if council considers them historically unapproved Council''s are attempting to make ‘unapproved buildings’ an offence when this is only attributed to the person carrying out building work at the time. This understanding of the offence is articulated in determination 2014.035 at 5.3.
"5.3. Who can be issued with a notice to fix?
5.3.1The main purpose of a notice to fix is to ensure compliance with the Act and Building Code and provide effective penalties for those that do not comply.[1] A notice to fix can be issued to a ‘specified person’ under section 1 64(l)(a) of the Act. The definition of a ‘specified person’ is found under section 163 of the Act stating:
specified person means--
a. the owner of a building; and (sic see footnote)
b. if the notice to fix relates to building work being carried out,--(i) the person carrying out the building work; or (ii) if applicable, any other person supervising the building work.
5.3.2 Under this definition the ‘owner’ of a building is a specified person. However, one needs to read the definition in conjunction with section 164(l)(a) of the Act, which states that the specified person is contravening or failing to comply with the Act. In my view a notice to fix can only be issued to an owner in respect of a contravention or failure to comply with the Act or Regulations. If the person who contravened the Act is no longer the owner of the building, a notice to fix cannot be issued to a subsequent owner who did not contravene or fail to comply with the Act or Regulations.
5.3.3 I am aware this decision takes a different approach from previous determinations.[2] While earlier determinations focused on whether a person was an “owner” and hence a “specified person” to whom a notice to fix could be issued, the nature of the contravention also needs to be considered.
5.3.4 A notice to fix is issued to a specified person as opposed to being issued in respect of the building, in contrast to a building consent or a dangerous buildings notice which is specific to the building itself. A notice to fix is focused on a person and the ability for that person to be prosecuted for failure to comply with the notice under section 168 of the Act.
5.3.5 The wording of section 164 indicates that the specified person must do something, for example carry out building work without a building consent and contravene section 40, in order to be issued with a notice to fix. If a person carries out building work without a building consent a notice to fix can be issued to that person (my emphasis).
5.3.6 If a person as a new owner purchases a house on which a previous owner has carried out building work without a building consent, a notice to fix cannot be issued to the new owner as they have not contravened the Act in that they did not carry out the building work that contravened section 40.
5.3.7 Under section 163 a notice to fix can also be issued to the person carrying out the building work. For example, if a builder is carrying out the building work they can be issued with a notice to fix, however where the builder has no legal right to carry out the building work[3] and therefore has no ability to remedy the contraventions and non-compliances listed in the notice to fix; the builder cannot be included as a specified person on the notice to fix. The legislation makes it clear that the builder can only be a specified person when they are carrying out the building work. The same reasoning applies to an owner, if the owner did not carry out the contravention of the Act under section 164(1), they cannot be held accountable.
5.3.8 Where an authority intends to issue a notice to fix, they should identify the provision of the Act or Regulations that has been contravened and they should check that it was the person to whom the notice to fix is going to be issued who contravened the provision and not a previous owner.
5.3.9 In relation to the current building, the notice to fix issued by the authority dated 10 February 2014 states the contravention being a failure to comply with section 40 of the Act as building work was undertaken without a building consent. There is no dispute the building work in question was carried out by the previous owner in April- May 2013. The applicant’s purchased the property in July 2013. The applicant’s did not carry out the building work described on the notice to fix, and therefore cannot be issued with a notice to fix............."
In our view this is a correct decision but the justification may be flawed, It is true the new owner may not have been the specified person but also that they are not committing any s40 offence?
s40 as well as to the person carrying out the work (and not the building work) is only contravened when the carrying out of work occurs (and consent was required) and is not a continuing offence when the work stops. which is the case for building work even if they are not exempt under s41. This is case law established by Andrews Housing v SDC HC Tipping 1995; (this dealt with similar wording in the Building Act 1991 in respect to s80 and a notice to rectify) ;
This stated page 9;
"I do not consider that the action of carrying out building work can be regarded for the purposes of s.80(5) as being the continued existence of anything. In this case the relevant building work had ceased at the very latest by the time the Notice to Rectify was issued in February 1994. There can be no suggestion that any building work was being carried out on the five townhouses on 21 September 1994 or on any of the days between that date and 9 February 1995. The concept of the continued existence of anything simply does not fit with an offence against s.80(1 )(a). Clearly it would fit with other paragraphs of s.80(1) such as paragraph (b) and paragraph (c). For the sake of completeness I should add that neither does the concept of the intermittent repetition of any action fit with an offence under s.80(1) (a). Such an offence ceases to be committed when the building work in question ceases" (our emphasis).
"Building work" is a defined term in the building act and is distinct from the "building". Building work is the doing of work to the building and not the building although the building work could be a new building.
S40 must be read in accord with s41 and s42A that allows for work without consent.
S41 states (despite s40) that a building consent is "not required in relation to (b) any building work is described in schedule 1". We maintain that if the owner can ‘describe’ the work as complying with schedule 1 and council should also have a permissive view of schedule 1 and abide by the spirit of it. The owner should get the benefit of any doubt. The building work and the way construction proceeds must be judged and not councils perception and viewed with prejudice when the outcome is presented from their view.
We also note that council must consider the new meaning of "specified person" and the change to definition in s163 that now suggests that a NTF under s40 must be issued to the person carrying out the work if it relates to building work being carried out. This is consistent with s40 that there may be no offence for the owner.
Remedy of contravention;
With respect we maintain that if the building work is already “lawful” and compliant to the extent required by the building Act then council cannot act. We note that s17 of the Building Act states; the building work must comply to the extent required by the Act whether of not under a building consent. S 17 applies to the building work and not to the existing building. There is no ongoing requirement to maintain a buildings compliance with the exception of matters relating to specified systems and Compliance Schedules under s100.
We note that however council does not have to be satisfied on reasonable grounds that the building work complies with the code (as it does for the issuance of a consent of a CCC). There is a distinction between satisfying council such as to issue a CCC and a contravention of s17 which requires evidence of a clause performance criteria failure If the owner and ourselves consider that compliance in any case is achieved to the extent required by the building act and this is self evident as there is no failure evident. For work under schedule 1 s42A (2) is also satisfied if the code compliance of the existing building is not worse.
A CoA under s96 is an option where a consent was required and none was granted. If the work is under schedule 1 then a CoA is not available to the owner In fact a COA cannot be granted for this work as a consent was not required under s96 91) (a) (ii).
In any event a CoA is not mandatory unless work was under urgency and required a consent so the NTF should not require this (but an owner may apply for one if they choose). We note the wording in the Act in respect to a CoA is generally may apply for a CoA and is not a mandatory provision. Thus a CoA is not a remedy under the Act unless a direct requirement for work under urgency in reliance of s41.
We note also the reference in the CoA provisions at s96(3) (a) "does not limit s40 (which provides that a person must not carry out any building work except in accordance with a building consent) and" (b) that states that the issuing of a CoA "does not relieve a person from the requirement to obtain a building consent for building work". This on the one hand reiterates that a person doing building work should have a consent but recognizes the building is distinct from s40 offence.
It follows as a general rule that if a remedy cannot be identified then the allegation is also not defined.
Can an owner be forced to remove unconsented building work or required to do so?
While often stated as such in NTF and while removal is always an option for an owner, (even if consented), we note that this option, noted as a requirement (“you must”) is unlawful. Council does not have the right to order removal (and return to former approved use), unless the building is deemed dangerous or insanitary under the building act which these are not. Even under s124 they can only be made to be not dangerous or insanitary and removal is not mandatory.
The understanding that even unconsented building work (not exempt under s41) cannot not be required to be removed is critical to appreciation that the offence is not attached to the completed building work but to the person carrying out the work.
Unconsented work remains as unapproved but is not unlawful!
As a requirement in NtF this demand to remove is an abuse of power and contrary to many determinations including 2009-115 and 1999-006. It is a cynical inclusion designed to frighten owners into thinking their building is unlawful and requires legitimacy when the offence is with the person at the time of building only. Owners are then tricked into submitting to a CoA process that is also punitive and suffer financial cost as a result out of proportion to the allegation. While an owner has the right to maybe apply for a CoA that same provision provides the prerogative to not apply for one if they so choose. The only obligation on an existing building is the requirement to be not dangerous or insanitary (and a few other similar exceptions to the rule). If it is not mandatory to get unapproved work approved then it follows there cannot be a contravention because the remedy is not obligatory but only voluntary.
We note also Auckland Council's default wording that states a remedy as" pursue any legal option to achieve compliance,....." is a non specific and defective remedy. It begs the question that if a remedy cannot be stated clearly then perhaps this indicates a lack of appropriate contravention?
So in general terms a NTF can only be issued for a contravention that has a required remedy that under the building act has to be present(ie s164 (2) a obtain a consent because the work still required needs one ( and also refer s165(1) (d)), b) correct a BWoF ( because the building is required to have one) and c) saisfy on going compliance schedule requirements that apply to the building anyway.
The lack of remedy also brings the NtF into question. If a clear offence is present it follows that the remedy must also be self evident. The failure to identify a remedy is contrary to s164(2). Perhaps the reason that Auckland Council does not state that the work must obtain a CoA is because they know that this is not a mandatory requirement and unless Dangerous or insanitary under s124 they have no power to interfere in an owner's building. They often state may require one when this is not mandatory. but the owner is misled to think it is.
So when can an owner who may have acted in good faith or relied on the advice of others relax (if any doubt remains)???
When can the council faced with an historical offence that they likely lack evidence for be satisfied that they do not have to act or instigate enforcement proceedings for a current offence (and absolved from responsibility for not acting)???
The answer may be in reliance of the limitation period in s378 designed to limit a councils ability to Act and reflected also in the RMA s338 which contains similar wording. as well as stopping council action it provides closure and natural justice given that evidence and witnesses become hard to find outside this period of time. The section relieves the owner but absolves the council at the same time and all can get on with their lives.
The affect of S378 Time limit for laying information;
s378 states;
378, Time limit for filing charging document
Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against this Act ends on the date that is 6 months after the date when the matter giving rise to the charge first became known, or should have become known, to any of the following persons:
a. the chief executive; or
b. a territorial authority; or
c. a regional authority; or
d. any person referred to in section 176(g).
Notwithstanding the above as to whether a NTF can or should be issued s378 in my view should stop the enforcement of the matter 6mths after the date when the matter giving rise to the charge should have become known to the council. This is certainly understood in reliance of Andrew Housing when the council are aware of the matter (the clock starts then) but must also "should have become known" can be interpreted as should have because this ius when offence stopped and their opportunity started to be lost. I have tried to argue this issue in determinations without success. It was discussed in respect the building act 1991 in the Andrews Housing decision 1996 (andrews_v_sdc_1996_ntr_content_and_time_bar.pdf ) at page 9. The principles have also been discussed in Brookers Building Act commentary (andrews_cce03032015_00000_commentary_s378__002_.pdf
This states that the 6 mth period must be considered; The commentary refers to a "Catley" decsion,We would appreciate a copy of that "Catley" decision if a reader has this as our approaches to parties, counsel and courts has failed to reveal this decision. The argument was run by us in determination 2014-051. determination_2014-051_the_issue_of_a_notice_to_fix_for_the_construction_of_a_deck_without_building_consent_-_2014-051_12_hobson.pdf) Decision found at 5.6 that time ran from when the NTF was not complied with and this was a continuing offence and therefore s378 did not apply. This ignored the "matter" as the building work under s40 that led to the NtF. It tried to make the issuing of a NTF in respect to the building work completed nearly a year earlier a different matter. This interpretation is in contradiction to "Andrews" in our view. The matter of s378 remains unsettled and in need of court review and guidance in our opinion.
What happens when an owner considers they have complied?
s168 provides the process for notifying council that the NTF is complied with. If council agree then that is the end of the matter. If they dont agree then they have to state their reasons to the owner. A reason should be more than we don't agree, we are right you are wrong). Only then should council consider whether a further NTF is to be issued. Generally in practice the response is the NTF is not complied with and still in play or we extend the period for compliance. at this point some even issue an iinfringemnent for the failure to comply with the previous NTF. A further NTF should indicate a continuing offence.
Conclusion ;
footnote;
[1] 2013/015 The refusal to issue a code compliance certificate and the simultaneous issue of a notice to fix for a 14-year-old house,
8 April 2013 The definition of ‘specified person’ change in jan 2017 when the “and” was dropped)
“and” was dropped from the drfinition when the pool amendments were made in Jan 2017
[2]2011/033 Notices to fix issued in respect of the conversion of a storage shed to a sleep-out and alterations to the sleep-out (Department of Building and Housing) 13 April 2011
[3] For example; is not engaged to carry out the building work, or is restricted from doing so.
We are not lawyers and are mindful that the following provides significant legal comment and interpretation. Legal precedents are sparse. Readers must seek qualified legal advice but we also welcome critique, challenge and rebuttal of the views expressed-Alan light]
Introduction
The enforcement mechanism under the Building Act apart from Dangerous Building Notices under s124 are “Notices to Fix” (NtF) under s164 of the building Act 2004. Previously these were issued as Notices to Rectify(NtR) under the Building Act 1991. In recent times we have noted an increasing tendency for councils to issue a Notice to Fix under s164 of the Building Act 2004 for what appears to be only technical breaches of the Building Act. Failure to comply with provisions of the building act is an offence for only a selective number of provisions. If a council can issue a NTF for only non compliance then should they issue a BCA a NTF when a BCA fails to issue a building consent on time (under s48 (1)A (b)) within 20 days? Should contraventions be reserved for those that require a remedy?
A recent determination 2013-015 discussed in other papers on this site made it clear that a NtF should only be issued for serious offences recidivist offenders and after exhausting other avenues.
4.2.8 states; “for example if the breach is significant, the building work is unsafe or is likely to
become unsafe, or there have been repeated breaches by the owner of the Act or
Building Code. However, in these circumstances, there are particular requirements
of the Act in respect of the issue of a notice to fix that must be satisfied. For
example, an authority must consider on reasonable grounds that a person is
contravening or failing to comply with the Act or regulations. The authority’s belief
that the Act or regulations are being contravened will require some specific evidence
in support of that belief before a notice to fix can be issued.”
Instead issuing a NTF is often the first time an owner becomes aware of the allegations of non contravention. The main problem seems to involve unapproved work (sometimes completed for some years),where council seem more interested in enforcement against the building itself rather than the s40 offence utilised which strictly is to the person carrying out the work.
The question of remedy in these cases also raises the issue of whether unapproved work has to be approved (by way of a certificate of acceptance(CoA) or can remain as unapproved work as long as it is not dangerous or insanitary which was the established case under the building act 1991 (which had similar provisions)but no provision for a voluntary CoA as there is now. If something is able to remain and doe not require a remedy does it not follow that an allegation of contravention is also not warranted?
Council seem to operate on the premise that if a NtF can be issued then it should be without reference to harm and outcome and the greater good to the community.
Who can issue a NTF?
Ntf are issued by responsible persons. These are defined under s163 as a) Building Consent Authority (BCA), b) territorial authority(TA) or c) regional authority.
Who can a NTF be issued to?
NTF are issued to "specified persons". These are defined in s163 as; a) the owner of a building b) if the NTF relates to building work being carried out (i) the person carrying out the building work or (ii) if applicable any other person supervising the building work.
(Note; prior to 2017 reprint there was an "and" after “owner” in a). This changes emphasis on who should get a NTF when it involves building work being carried out and suggests that the NTF should only be issued to person in 163(b) when it involves work being carried out (and not the owner?). This is consistent with the person doing/carrying out the work as being responsible and not the owner unless they are also the builder.
What can a NTF be issued for?
S164 (1) sets out the reasons a NtF can be issued for ;
164 (1) This section applies if a responsible authority considers on reasonable grounds that--
a) a specified person is contravening or failing to comply with this Act or the regulations (for example, the requirement to obtain a building consent); or
b) a building warrant of fitness or dam warrant of fitness is not correct; or
c) the inspection, maintenance, or reporting procedures stated in a compliance schedule are not being, or have not been, properly complied with.(2)
(2) A responsible authority must issue to the specified person concerned a notice (a notice to fix) requiring the person--
a) to remedy the contravention of, or to comply with, this Act or the regulations; or
b)to correct the warrant of fitness; or
c) to properly comply with the inspection, maintenance, or reporting procedures stated in the compliance schedule.
There are also under s166 special provisions for NtF from Building Consent Authority's (BCA). Building Consent Authority's are persons under s273 granted the authority to grant Building consents under s49 and administer the associated requirements for building work. It is common for Territorial Authorities (TA) to be councils and also BCA's but BCA's may contract to other TA/councils to do their work. S166 provides a BCA that issued a building consent who considers that the building work has not been or is not being carried out in accordance with the Act or the Building consent to issue a NTF but there are restrictions on jurisdiction. ( the consent is operative, is in respect to building work that required a building consent or did not require a consent but was required to meet the building code). We note that a BCA can only act where they have issued a consent.
It is an offence to not display a correct Building Warrant of Fitness under s108(5). The reporting maintenance and reporting requirements are not being complied with is something covered under s103(1) except this is not an offence under the act (to not comply with the requirements in the compliance schedule). It is only an offence to an owner to not obtain a compliance schedule under s101 (2).
Leaving aside building warrant of fitness's it is of note that s164 (c) is required to be mentioned unless it was to include something in 164(1)(a) that was not otherwise included as a "contravention" and offence?
The question is raised as to why (b) (c) was required to be stated? They are both contraventions of the act although only (b) is an offence? My view is that this must have been to ensure that the remedy that follows in s164 (2) is relevant. Remedy under s164 (1) (a) should be self- evident
s164(1) (a) otherwise provides for stopping any offence under the Act and the example provided alludes to such an instance "the requirement to obtain a building consent". (unfortunately the remedy in s164(2) (a) does not mirror s164(1) (a).What is unclear is whether s164 (1) (a) refers to s40 and the carrying out of building consent otherwise in accordance with a building consent (which is an offence under s40), or the owners obligation under s44 to apply for a consent (which does not attract an offence if he doesn't).
There is a consistency if it is recognized that having stopped work (without consent)the obligation is to obtain a consent for work still requiring one but the work done may be covered under an application for a CoA. (which can be read as either; i. may not include for a CoA if owner chooses to not do) so or ii. council may accept application for one but this may also recognize that one cannot be required.
The remedies in 164(2) mirror the contraventions in (1). In (a) it states that the specified person will remedy the contravention of, or comply with the act. (Contravention means: "A term of French law meaning an act violative of a law, a treaty, or an agreement made ..". Collins Dictionary of Law © W.J. Stewart, 2006).
The question is whether something under the act that is not an offence is a contravention or just simply a non compliance? It is true that serious contraventions are also provided with offences that follow (e.g.s40 s114, s 108, s128....), that also are generally listed in infringement regulations. The example in s164 (1) (a) alludes to s40 for example
It should also follow that a contravention is provided with a remedy required under the building act, For example working without a consent means a consent is required to be attained, failure to display a BWoF means one must be displayed. Building Work being carried out that is failing a code clause must under s17 be made compliant (but not the building it is attached to).
Building work that is complete and not being carried out is now the "Building" and cannot have compliance enforced. (we note s124 applies to all buildings all the time).
S40 offense;
S40 seems to be the council go-to clause for unconsented work. We appreciate that work in hand should be under consent (if schedule 1 does not apply and the work cannot be 'described' under it). While the wording in NTF often use obtaining a consent as the wording associated with s40 the offence under s40 is the carrying out of Building work and the offence is not to the building work per se. The wording is more correctly attributable to s44 the owners responsibility to get a consent before work is started (but there is no offence to this section?)
S 40 also attracts an infringement fine ($1000 fine and carries its own punitive threat of $200k and or $20k per day possible court fine.....
We note that s40 applies to the person carrying out the work at the time. If the work to date did not require a consent or it is completed there is no continuing offence to the existing structures even if council considers them historically unapproved Council''s are attempting to make ‘unapproved buildings’ an offence when this is only attributed to the person carrying out building work at the time. This understanding of the offence is articulated in determination 2014.035 at 5.3.
"5.3. Who can be issued with a notice to fix?
5.3.1The main purpose of a notice to fix is to ensure compliance with the Act and Building Code and provide effective penalties for those that do not comply.[1] A notice to fix can be issued to a ‘specified person’ under section 1 64(l)(a) of the Act. The definition of a ‘specified person’ is found under section 163 of the Act stating:
specified person means--
a. the owner of a building; and (sic see footnote)
b. if the notice to fix relates to building work being carried out,--(i) the person carrying out the building work; or (ii) if applicable, any other person supervising the building work.
5.3.2 Under this definition the ‘owner’ of a building is a specified person. However, one needs to read the definition in conjunction with section 164(l)(a) of the Act, which states that the specified person is contravening or failing to comply with the Act. In my view a notice to fix can only be issued to an owner in respect of a contravention or failure to comply with the Act or Regulations. If the person who contravened the Act is no longer the owner of the building, a notice to fix cannot be issued to a subsequent owner who did not contravene or fail to comply with the Act or Regulations.
5.3.3 I am aware this decision takes a different approach from previous determinations.[2] While earlier determinations focused on whether a person was an “owner” and hence a “specified person” to whom a notice to fix could be issued, the nature of the contravention also needs to be considered.
5.3.4 A notice to fix is issued to a specified person as opposed to being issued in respect of the building, in contrast to a building consent or a dangerous buildings notice which is specific to the building itself. A notice to fix is focused on a person and the ability for that person to be prosecuted for failure to comply with the notice under section 168 of the Act.
5.3.5 The wording of section 164 indicates that the specified person must do something, for example carry out building work without a building consent and contravene section 40, in order to be issued with a notice to fix. If a person carries out building work without a building consent a notice to fix can be issued to that person (my emphasis).
5.3.6 If a person as a new owner purchases a house on which a previous owner has carried out building work without a building consent, a notice to fix cannot be issued to the new owner as they have not contravened the Act in that they did not carry out the building work that contravened section 40.
5.3.7 Under section 163 a notice to fix can also be issued to the person carrying out the building work. For example, if a builder is carrying out the building work they can be issued with a notice to fix, however where the builder has no legal right to carry out the building work[3] and therefore has no ability to remedy the contraventions and non-compliances listed in the notice to fix; the builder cannot be included as a specified person on the notice to fix. The legislation makes it clear that the builder can only be a specified person when they are carrying out the building work. The same reasoning applies to an owner, if the owner did not carry out the contravention of the Act under section 164(1), they cannot be held accountable.
5.3.8 Where an authority intends to issue a notice to fix, they should identify the provision of the Act or Regulations that has been contravened and they should check that it was the person to whom the notice to fix is going to be issued who contravened the provision and not a previous owner.
5.3.9 In relation to the current building, the notice to fix issued by the authority dated 10 February 2014 states the contravention being a failure to comply with section 40 of the Act as building work was undertaken without a building consent. There is no dispute the building work in question was carried out by the previous owner in April- May 2013. The applicant’s purchased the property in July 2013. The applicant’s did not carry out the building work described on the notice to fix, and therefore cannot be issued with a notice to fix............."
In our view this is a correct decision but the justification may be flawed, It is true the new owner may not have been the specified person but also that they are not committing any s40 offence?
s40 as well as to the person carrying out the work (and not the building work) is only contravened when the carrying out of work occurs (and consent was required) and is not a continuing offence when the work stops. which is the case for building work even if they are not exempt under s41. This is case law established by Andrews Housing v SDC HC Tipping 1995; (this dealt with similar wording in the Building Act 1991 in respect to s80 and a notice to rectify) ;
This stated page 9;
"I do not consider that the action of carrying out building work can be regarded for the purposes of s.80(5) as being the continued existence of anything. In this case the relevant building work had ceased at the very latest by the time the Notice to Rectify was issued in February 1994. There can be no suggestion that any building work was being carried out on the five townhouses on 21 September 1994 or on any of the days between that date and 9 February 1995. The concept of the continued existence of anything simply does not fit with an offence against s.80(1 )(a). Clearly it would fit with other paragraphs of s.80(1) such as paragraph (b) and paragraph (c). For the sake of completeness I should add that neither does the concept of the intermittent repetition of any action fit with an offence under s.80(1) (a). Such an offence ceases to be committed when the building work in question ceases" (our emphasis).
"Building work" is a defined term in the building act and is distinct from the "building". Building work is the doing of work to the building and not the building although the building work could be a new building.
S40 must be read in accord with s41 and s42A that allows for work without consent.
S41 states (despite s40) that a building consent is "not required in relation to (b) any building work is described in schedule 1". We maintain that if the owner can ‘describe’ the work as complying with schedule 1 and council should also have a permissive view of schedule 1 and abide by the spirit of it. The owner should get the benefit of any doubt. The building work and the way construction proceeds must be judged and not councils perception and viewed with prejudice when the outcome is presented from their view.
We also note that council must consider the new meaning of "specified person" and the change to definition in s163 that now suggests that a NTF under s40 must be issued to the person carrying out the work if it relates to building work being carried out. This is consistent with s40 that there may be no offence for the owner.
Remedy of contravention;
With respect we maintain that if the building work is already “lawful” and compliant to the extent required by the building Act then council cannot act. We note that s17 of the Building Act states; the building work must comply to the extent required by the Act whether of not under a building consent. S 17 applies to the building work and not to the existing building. There is no ongoing requirement to maintain a buildings compliance with the exception of matters relating to specified systems and Compliance Schedules under s100.
We note that however council does not have to be satisfied on reasonable grounds that the building work complies with the code (as it does for the issuance of a consent of a CCC). There is a distinction between satisfying council such as to issue a CCC and a contravention of s17 which requires evidence of a clause performance criteria failure If the owner and ourselves consider that compliance in any case is achieved to the extent required by the building act and this is self evident as there is no failure evident. For work under schedule 1 s42A (2) is also satisfied if the code compliance of the existing building is not worse.
A CoA under s96 is an option where a consent was required and none was granted. If the work is under schedule 1 then a CoA is not available to the owner In fact a COA cannot be granted for this work as a consent was not required under s96 91) (a) (ii).
In any event a CoA is not mandatory unless work was under urgency and required a consent so the NTF should not require this (but an owner may apply for one if they choose). We note the wording in the Act in respect to a CoA is generally may apply for a CoA and is not a mandatory provision. Thus a CoA is not a remedy under the Act unless a direct requirement for work under urgency in reliance of s41.
We note also the reference in the CoA provisions at s96(3) (a) "does not limit s40 (which provides that a person must not carry out any building work except in accordance with a building consent) and" (b) that states that the issuing of a CoA "does not relieve a person from the requirement to obtain a building consent for building work". This on the one hand reiterates that a person doing building work should have a consent but recognizes the building is distinct from s40 offence.
It follows as a general rule that if a remedy cannot be identified then the allegation is also not defined.
Can an owner be forced to remove unconsented building work or required to do so?
While often stated as such in NTF and while removal is always an option for an owner, (even if consented), we note that this option, noted as a requirement (“you must”) is unlawful. Council does not have the right to order removal (and return to former approved use), unless the building is deemed dangerous or insanitary under the building act which these are not. Even under s124 they can only be made to be not dangerous or insanitary and removal is not mandatory.
The understanding that even unconsented building work (not exempt under s41) cannot not be required to be removed is critical to appreciation that the offence is not attached to the completed building work but to the person carrying out the work.
Unconsented work remains as unapproved but is not unlawful!
As a requirement in NtF this demand to remove is an abuse of power and contrary to many determinations including 2009-115 and 1999-006. It is a cynical inclusion designed to frighten owners into thinking their building is unlawful and requires legitimacy when the offence is with the person at the time of building only. Owners are then tricked into submitting to a CoA process that is also punitive and suffer financial cost as a result out of proportion to the allegation. While an owner has the right to maybe apply for a CoA that same provision provides the prerogative to not apply for one if they so choose. The only obligation on an existing building is the requirement to be not dangerous or insanitary (and a few other similar exceptions to the rule). If it is not mandatory to get unapproved work approved then it follows there cannot be a contravention because the remedy is not obligatory but only voluntary.
We note also Auckland Council's default wording that states a remedy as" pursue any legal option to achieve compliance,....." is a non specific and defective remedy. It begs the question that if a remedy cannot be stated clearly then perhaps this indicates a lack of appropriate contravention?
So in general terms a NTF can only be issued for a contravention that has a required remedy that under the building act has to be present(ie s164 (2) a obtain a consent because the work still required needs one ( and also refer s165(1) (d)), b) correct a BWoF ( because the building is required to have one) and c) saisfy on going compliance schedule requirements that apply to the building anyway.
The lack of remedy also brings the NtF into question. If a clear offence is present it follows that the remedy must also be self evident. The failure to identify a remedy is contrary to s164(2). Perhaps the reason that Auckland Council does not state that the work must obtain a CoA is because they know that this is not a mandatory requirement and unless Dangerous or insanitary under s124 they have no power to interfere in an owner's building. They often state may require one when this is not mandatory. but the owner is misled to think it is.
So when can an owner who may have acted in good faith or relied on the advice of others relax (if any doubt remains)???
When can the council faced with an historical offence that they likely lack evidence for be satisfied that they do not have to act or instigate enforcement proceedings for a current offence (and absolved from responsibility for not acting)???
The answer may be in reliance of the limitation period in s378 designed to limit a councils ability to Act and reflected also in the RMA s338 which contains similar wording. as well as stopping council action it provides closure and natural justice given that evidence and witnesses become hard to find outside this period of time. The section relieves the owner but absolves the council at the same time and all can get on with their lives.
The affect of S378 Time limit for laying information;
s378 states;
378, Time limit for filing charging document
Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against this Act ends on the date that is 6 months after the date when the matter giving rise to the charge first became known, or should have become known, to any of the following persons:
a. the chief executive; or
b. a territorial authority; or
c. a regional authority; or
d. any person referred to in section 176(g).
Notwithstanding the above as to whether a NTF can or should be issued s378 in my view should stop the enforcement of the matter 6mths after the date when the matter giving rise to the charge should have become known to the council. This is certainly understood in reliance of Andrew Housing when the council are aware of the matter (the clock starts then) but must also "should have become known" can be interpreted as should have because this ius when offence stopped and their opportunity started to be lost. I have tried to argue this issue in determinations without success. It was discussed in respect the building act 1991 in the Andrews Housing decision 1996 (andrews_v_sdc_1996_ntr_content_and_time_bar.pdf ) at page 9. The principles have also been discussed in Brookers Building Act commentary (andrews_cce03032015_00000_commentary_s378__002_.pdf
This states that the 6 mth period must be considered; The commentary refers to a "Catley" decsion,We would appreciate a copy of that "Catley" decision if a reader has this as our approaches to parties, counsel and courts has failed to reveal this decision. The argument was run by us in determination 2014-051. determination_2014-051_the_issue_of_a_notice_to_fix_for_the_construction_of_a_deck_without_building_consent_-_2014-051_12_hobson.pdf) Decision found at 5.6 that time ran from when the NTF was not complied with and this was a continuing offence and therefore s378 did not apply. This ignored the "matter" as the building work under s40 that led to the NtF. It tried to make the issuing of a NTF in respect to the building work completed nearly a year earlier a different matter. This interpretation is in contradiction to "Andrews" in our view. The matter of s378 remains unsettled and in need of court review and guidance in our opinion.
What happens when an owner considers they have complied?
s168 provides the process for notifying council that the NTF is complied with. If council agree then that is the end of the matter. If they dont agree then they have to state their reasons to the owner. A reason should be more than we don't agree, we are right you are wrong). Only then should council consider whether a further NTF is to be issued. Generally in practice the response is the NTF is not complied with and still in play or we extend the period for compliance. at this point some even issue an iinfringemnent for the failure to comply with the previous NTF. A further NTF should indicate a continuing offence.
Conclusion ;
- The NTF can only be issued to the builder while he is carrying out the work
- A NTF under s40 is for building work being carried out not to the building
- The owner may be issued the NTF if he is the builder but otherwise the builder only as the specified person carrying out the work at the time.
- The offence under s40 stops when the building work stops
- It could be arguable that council don’t have evidence for an offence after the work stops.
- In any event 6 months after the work stops the ability of council to enforce the offence lapses due to s378 because the council should have been aware at this time of the offence and if they weren't that is too bad.
- s168 provides the mechanism for notifying the council that the owner considerrs the NTF satisfied and the council should then issue reasons and a further NTF if required
- The work remains as unapproved unconsented work but may be subject to a CoA but only as an owner’s preorogative
footnote;
[1] 2013/015 The refusal to issue a code compliance certificate and the simultaneous issue of a notice to fix for a 14-year-old house,
8 April 2013 The definition of ‘specified person’ change in jan 2017 when the “and” was dropped)
“and” was dropped from the drfinition when the pool amendments were made in Jan 2017
[2]2011/033 Notices to fix issued in respect of the conversion of a storage shed to a sleep-out and alterations to the sleep-out (Department of Building and Housing) 13 April 2011
[3] For example; is not engaged to carry out the building work, or is restricted from doing so.
